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Probate

Does Florida honor foreign Wills?

By Elder Law, Estate Planning, Probate

Yes, but with conditions. The Florida Probate Code states: “Any Will, other than a holographic or nuncupative Will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a Will in this state if valid under the laws of the state or country where the Will was executed.”

A holographic Will is one handwritten by the testator and not witnessed, whereas a nuncupative Will is one relayed orally by the testator to another person but never put in writing. Neither type of Will is valid in Florida, even if the state where it was executed permits such documents. Note that a handwritten Will that is witnessed is still valid under Florida law. Other than these exceptions, Florida generally recognizes any Will which was valid in the jurisdiction where it was created.

Even if an out-of-state Will is legally valid under Florida law, it may benefit the testator to update it so that it will reflect Florida law, which has many advantages for estates and trusts. To check whether your Will is valid in Florida probate court, or to revise and update your Will to reflect current Florida law, the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. are here to help. Call us at (941) 906-1231 to set up an appointment.

July 1, 2019
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What is summary ancillary administration?

By Probate

Summary ancillary administration is a type of ancillary probate in Florida (as a reminder, ancillary probates are generally necessary when a nonresident of Florida dies leaving real property in Florida). As defined in the Florida Probate Code, to qualify for this form of ancillary probate, the following criteria must be met:

  • The decedent had a Will
  • The decedent was not a resident of Florida
  • The decedent died less than two years ago
  • The decedent’s assets have a gross value of no more than $50,000
  • The personal representative was appointed by an out-of-state court
  • The pleadings from the foreign state probate court are available to be filed in a Florida court

In a summary ancillary administration, it is not necessary for a Florida personal representative to be appointed. However, the personal representative from out of state may file the transcript of the original probate proceedings with the Florida circuit court of the county where the decedent’s property remains, and he/she may also publish a notice of administration to all creditors and interested parties of the decedent’s Florida assets.

If you are a personal representative in need of probate guidance, the highly-skilled and experienced attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941) 906-1231 to set up an appointment.

June 17, 2019
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What is a probate caveat?

By Probate

Sometimes, there are other parties interested in the estate of a deceased person who are, for one reason or another, not in contact with the court-nominated personal representative of the estate. If these individuals want to receive prior notice regarding the commencement of the probate estate, they may file a probate caveat.

A potential beneficiary or creditor will file the caveat with the intent of getting the court to notify them upon the opening of the estate. A creditor may file the caveat only after the death of the given individual, whereas the potential beneficiary may file the caveat before or after that individual’s death. In so doing, the potential beneficiary will be able to contest the appointment of the nominated personal representative.

May 20, 2019
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“It’s All Greek to Me”: Fiduciary

By Estate Planning, Probate

 In this series of blog posts, we define esoteric legal terms and explain how they are used in law.

The word “fiduciary” has many meanings in law, but the Merriam-Webster definition ties together all uses of the word nicely: “of, relating to, or involving a confidence or trust.” Whether the term is applied to a will, a trust, or a power of attorney, it is the duty of the fiduciary to act in the best interest of his/her client, their estate, and their beneficiaries.

When it comes to probate, the fiduciary acts as the “Personal Representative” (a.k.a., “executor”) of the Will – the person in charge of distributing the assets and seeing the probate administration to its completion. The Personal Representative can be compensated for his/her services, known as “costs of administration.”

A trustee of a trust is the person appointed to hold and invest the assets of the trust. The fiduciary agent named under a power of attorney, like the trustee, has powers and responsibilities that go into effect as soon as the documents are signed.

May 14, 2019
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What constitutes a breach of fiduciary duty?

By Estate Planning, Probate

A fiduciary is an individual who has a duty to act in the best interests of another. There are many kinds of fiduciary relationships, but some of the most common are guardian-ward relationships, trustee-beneficiary relationships, and agent-principal relationships.

There is no one method by which a fiduciary duty may arise: certainly, a fiduciary relationship may be established explicitly, by contract, for example. But a fiduciary relationship can also be legally binding if it is established implicitly, without formal documents. Court cases surrounding breaches of fiduciary duties often hinge on the question of whether there existed a fiduciary relationship to have been breached in the first place.

With a Trust, the trustee acts as the fiduciary to the beneficiaries of the Trust, whereas in a probate, the personal representative of the estate acts as the fiduciary to the heirs of the estate. If you are Personal Representative or Trustee and are being accused of breaching your fiduciary duties, contact the trust and estate litigators of Bach, Jacobs & Byrne, P.A. to discuss your defense. Call us at (941) 906-1231 to set up a consultation.

May 2, 2019
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How do I find out if I am a beneficiary of a Will?

By Probate

After an individual passes away, the personal representative of their estate is appointed by the court. The Florida Probate Code instructs personal representatives to promptly serve Notices of Administration to the decedent’s surviving spouse and any beneficiaries named in the decedent’s Will. This document will include the contact information of the personal representative, the probate case file number, the address of the court in which the proceedings are pending, and a description of the relevant components of the probate process.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced and highly-skilled trust and estate attorneys who can guide you through the complex probate process. Call us at (941) 906-1231 to set up a consultation.

April 30, 2019
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Who has priority in appointment as Personal Representative if a person dies without a Will?

By Estate Planning, Probate

If the decedent has died “intestate” (without a Will), first-priority goes to the surviving spouse in the appointment of a personal representative. If the spouse is not qualified to serve as personal representative, the person selected by a majority in interest of the persons entitled to the estate takes the second-highest priority. The final option is for the heir of nearest degree to the decedent to be appointed personal representative.

Making a Will and nominating a personal representative are fundamental parts of the estate planning process. The attorneys at Bach, Jacobs & Byrne, P.A. are highly-skilled and experienced elder law and trust & estate attorneys who can assist you with the drafting of your Will and other estate documents. Call us at (941) 906-1231 to schedule a consultation.

April 16, 2019
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Can a Will be contested while the testator is still living?

By Elder Law, Estate Planning, Probate

No, in Florida a Will cannot be challenged while the testator is still alive. The Florida Probate Code states clearly: “An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.” However, if one suspects undue influence or fraud in the creation of a Will, one can certainly gather facts and evidence in preparation for future litigation if and when the time comes.

After a person’s death, the personal representative serves a Notice of Administration on the estate’s beneficiaries. For 90 days after this notice is served, beneficiaries can contest the Will.

A Will can be challenged for, among other reasons, errors in execution, fraud, lack of testamentary capacity, or presence of undue influence. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced probate litigators and estate attorneys who can advise you about your case. Call us at (941) 906-1231 to set up an appointment.

April 12, 2019
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“It’s All Greek to Me”: Tortious Interference with a Testamentary Expectancy

By Probate

A tortious interference with a testamentary expectancy is a wrongful act (also known as a “tort”) which causes economic harm to another person. In the context of an estate, the tort occurs when an individual prevents a beneficiary from receiving all or part of the gift that was intended to be left for them by the decedent in his/her Will.

In order to establish a claim for tortious interference with a testamentary expectancy, one must be able to prove a) that the decedent intended to leave a given portion of his/her estate to the specific beneficiary and b) that the decedent would have left those assets to the beneficiary were it not for the intentional actions of the defendant (also known as the “tortfeasor”).

It is important to note that courts generally will only allow for tort claims in regard to an inheritance when no alternate probate remedies are available to the plaintiff. If you would like to review your options for probate litigation, the highly-trained and experienced trust and estate attorneys at Bach, Jacobs & Byrne, P.A. can advise you. Call us at (941) 906-1231 to set up an appointment.

April 8, 2019
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If I move to another state, do I need to create new estate documents?

By Elder Law, Estate Planning, Probate

While it may not always be necessary to create entirely new estate documents when moving between states, it is always a good idea to review your estate documents with an attorney of the state in which you will begin living. This is because each state has a unique set of probate laws that governs the distribution of state residents’ assets.

When reviewing your estate plan documents, you might find that you have not moved all of your assets with you to the new state. If you die with real property left in another estate titled in your individual name, an ancillary probate may be necessary. This means that two probates may have to occur: one in the state in which you were living when you died, and one in the state in which you used to live where your property still remains.

To avoid the costs and delays of having multiple probate proceedings, you should at least review your estate documents with the experienced and dedicated elder law and estate attorneys of Bach, Jacobs & Byrne, P.A., as we can help you determine if they are valid in Florida and review the titling of all of your assets. Call us at (941) 906-1231 to schedule a consultation.

April 4, 2019
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